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Arati Paul Vs. Registrar O.S.H.C. and ors. - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 226 of 1964
Judge
Reported inAIR1966Cal120
ActsArbitration Act, 1940 - Section 21; ;Constitution of India - Article 226
AppellantArati Paul
RespondentRegistrar O.S.H.C. and ors.
Appellant AdvocateM.N. Banerji and ;P.K. Sen, Advs.
Respondent AdvocateD.N. Das, Choudhury and ;Dipankar Gupta, Advs.
DispositionAppeal dismissed
Cases ReferredMohammad Manjural Haque v. Bissesswar Banerji
Excerpt:
- b.c. mitra, j. 1. this appeal is directed against a judgment and order of mallick, j., dated august 26, 1964, discharging a rule obtained by the appellant under article 226 of the constitution. the application in which the rule nisi was issued was an offshoot of litigation among the members of the family of one srish chandra paul who died in 1930, leaving him surviving his widow, four daughters and four sons one or whom died during the mother's lifetime. the appellant is the youngest daughter of the said deceased. the widow executed a deed of gift in 1946 in favour of her three sons. she later instituted a suit in this court being suit no. 1045 of 1957 for cancellation of the deed of gift and for partition of the estate left by her deceased husband. she died in 1958 after having executed.....
Judgment:

B.C. Mitra, J.

1. This appeal is directed against a judgment and order of Mallick, J., dated August 26, 1964, discharging a rule obtained by the appellant under Article 226 of the Constitution. The application in which the Rule Nisi was issued was an offshoot of litigation among the members of the family of one Srish Chandra Paul who died in 1930, leaving him surviving his widow, four daughters and four sons one or whom died during the mother's lifetime. The appellant is the youngest daughter of the said deceased. The widow executed a deed of gift in 1946 in favour of her three sons. She later instituted a suit in this Court being Suit No. 1045 of 1957 for cancellation of the deed of gift and for partition of the estate left by her deceased husband. She died in 1958 after having executed a will whereby she bequeathed her entire estate to the appellant and her youngest son, to the exclusion of her two other sons and the other daughters. The appellant was substituted in place of the deceased widow as the plaintiff in the said suit and she also applied in February, 1960, for grant of Letters of Administration in respect of the will of her deceased mother. This application for Letters of Administration was contested by the appellant's two brothers Balai and Konai, and on such contest the testamentary proceeding was marked as contentious cause and was numbered Testamentary Suit No. 12 of 1962.

2. The said testamentary suit as well as the partition suit appeared in the list of Mallick, J. Oral evidence was taken in the testamentary suit for sometime, but before the hearing of the suit was concluded certain developments took place, as will appear from the Minutes of the order made by Mallick, J. on January 4, 1963 set out below:

'It is recorded that all the parties consent to this testamentary suit as well as the partition suit being suit No. 1045 of 1957 and all the disputes involved in these two matters be settled and referred to the sole arbitration of the Hon'ble Mr. Justice Mallick and the parties agreed to abide by any decision that will be given and no evidence need be taken except as to what his Lordship might desire and the evidence need not be recorded in any formal manner. Parties agree that His Lordship would have all the summary power including the power to divide and partition the properties and to make such decrees as his Lordship thinks fit and proper and for the purpose of partition, if necessary, to engage or appoint surveyors and commissioners as his Lordship thinks best.

It is recorded that all the parties have referred this matter to the learned Judge in what is known as extra cursumcuriae jurisdiction of this Court.

It is further recorded that all parties agree that they will not prefer any appeal from or against the decree or order that may be passed by his Lordship the Hon'ble Mr. Justice Mallick.' Thereafter Mallick, J., acting, under the said order dated January 4, 1963 passed an order on April 1, 1963, in the said suit No. 1045 of1957 adjudicating upon various disputes between the parties. This order was filed in the usual manner and a draft was issued to the parties for settling the same with a view to drawing up of a decree thereon. The appellant thereupon moved an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the Registrar. Original Side, of this Court to recall, cancel and withdraw the filing of the pretended award dated April 1, 1963, or to forthwith take off the said pretended award from the file and/or the records of the said suit. This application for a rule under Article 226 of the Constitution was rejected on September 5, 1963, by Banerjee J. Thereafter after various proceedings, including an application to the Supreme Court for an injunction restraining the drawing up of the decree, which was granted by the Supreme Court, Sinha and A.K. Mukherjea, JJ. heard the appeal, preferred by the appellant against the order or dismissal passed by Banerjee, J., and they directed the issue of a rule as prayed for by the appellant in her petition under Article 226 of the Constitution. Returns were duly filed by the respondents and the Rule was heard and disposed of by Mallick, J., by his judgment dated August 26, 1964, by which the rule nisi was discharged, the application was dismissed with costs and the Registrar was directed to file the decree forthwith. This appeal is directed against the said order of Mallick, J., discharging the rule.

3. Mr. M.N. Banerjee, learned counsel for the aplellant, contended that the order or pronouncement of Mallick, J., dated April 1, 1963, was neither a judgment nor a decree. This order was not made by Mallick, J. as a Judge trying the cause being Suit No. 1045 of 1957 Kumari Arati Paul v. Balai Chandra Paul. But it was made by him as the sole arbitrator to whom all the disputes involved in the two matters, namely, the Testamentary Suit No. 12 of 1962 (In the goods of Promila Sundari Paul, deceased) and Suit No. 1045 of 1957 (Sm. Arati Paul v. Balai Chandra Paul and others), were referred. Mr. Banerjee contended that the minutes dated January 4, 1963, which are annexure 'A' to the petition left no room for doubt that there was a reference of the outstanding disputes, in the said two matters, to the sole arbitration of Mallick, J. Mr. Banerjee further contended that the terms of the minutes made the position quite clear, namely, that the two matters were referred to the sole arbitration of Mallick, J., and that the parties agreed to abide by any decision that would be given, that no evidence need be taken, except what the learned Judge might desire, and such evidence need not be recorded in any formal manner. Further summary powers including the power to divide and partition the properties were given to the learned Judge. The minutes further recorded that the parties 'referred this matter to the learned Judge in what is known as Extra Cursum Curiae jurisdiction of this Court.'' It was recorded that the parties agreed that they would not prefer any appeal from or against the decree or order that might be passed by Mallick, J.

4. Relying upon the minutes, Mr. Banerjee contended that the pronouncement of Mallick, J., was nothing but an award of an arbitrator, and it should have been filed as such, according to the procedure laid down in the Arbitration Act, 1940. The said pronouncement of Mallick. J., Mr. Banerjee contended, could not and should not be treated as a judgment in the suit and no decree should be drawn upon the said purported judgment as a preliminary decree in the suit.

5. Although both the said matters, namely, the Testamentary suit and the partition suit were covered by the order of January 4, 1969, by which all the outstanding disputes in both the said matters were referred to the arbitration of Mallick, J., the subject matter of the dispute in the Testamentary Suit however, was not adjudicated upon or in any way touched by the pronouncement of the learned Judge dated April 1, 1968, in suit No. 1045 of 1957 which was the subject matter of the application under Article 226 of the Constitution. In the Testamentary Suit the learned Judge delivered a separate judgment also on the same day, namely, April 1, 1963, by which Letters of Administration were granted to the appellant in respect of the will of her mother. That judgment has disposed of this Testamentary Suit which, therefore, remains outside the scope of the pronouncement made by the learned Judge on April 1, 1963, in the said suit No. 1045 of 1957.

5a. The contention of the appellant before us was that the pronouncement made by Mallick, J., on April 1, 1963, was not a judgment in the said Suit No. 1045 of 1957. Not being a judgment, it could not be filed as such, but having been filed already, such filing of the pronouncement as a judgment in the records of the said Suit No. 1045 of 1957 should be recalled, cancelled and withdrawn. The ground for this contention was that in the minutes of the order made on January 4, 1963, it was recorded that the matters in dispute were referred to the sole arbitration of Mallick, J., and the parties agreed to abide by any decision that would be given by the learned Judge.

5b. Mr. Banerjee formulated his proposition as follows:

If a matter in dispute is referred to a Judge in the manner in which it has been done, the pronouucement made by the Judge was an award or at any rate it was a pronouncement in the nature of an award.

6. Mr. Banerjee's contention before us was that the said pronouncement of Mallick, J., dated April 1, 1963, in Suit No. 1045 of 1957 was not a judgment, it could not be treated as such, nor could it be filed as a judgment and no decree could be drawn up on the same. He submitted that once the disputes between the parties to a suit were referred to arbitration, the Court could not proceed with the hearing of the suit any further until the reference was superseded. It was argued that by the said pronouncement made on April 1, 1963, the learned Judge not only declared the rights of the parties with regard to various properties and their shares to the same, but he proceeded to give direction for further enquiries by a member of the Bar,with regard to other immoveable properties which might have been left out of the amicable partition, with regard to properties including zamindary lands which were conveyed to certain companies and also with regard to moveables and insurance moneys. Such enquiries were to be made under the personal supervision of the learned Judge and were to be conducted in such manner as the learned Judge personally directed.

6a. It was contended that the disputes in the suit having been referred to the sole arbitration of the Judge, such enquiries by other persons could not be directed by him. A Judge trying a cause can direct enquiries to be made with regard to any dispute between the parties, but if the Judge was appointed an arbitrator, as was done in this case, he could not direct enquiries to be made by others even though under his personal supervision, in the absence of any powers being given to him under the order of reference.

7. It was next contended on behalf of the appellant that Mallick, J., as a Judge of this Court could not direct that enquiries were to be made under his personal supervision. No Judge of this Court, it was argued, could give a direction that even after an order had been made by him, the execution of the order should be carried on for all times under his personal supervision.

8. It was strenuously argued on behalf of the appellant that she would be without a remedy if the pronouncement made by Mallick, J., on April 1, 1963, was allowed to be filed as a judgment and a decree was allowed to be drawn up on the same, as the pronouncement was made Extra Cursum Curiae and the order of January 4, 1963, under which the said pronouncement was made, recorded an agreement between the parties that they would not prefer any appeal from or against the decree or order that might be passed by the learned Judge. Therefore, it was argued, if a decree was allowed to be drawn up on the pronouncement made on April 1, 1963, the appellant would be without any remedy, because of the said agreement between the parties recorded in the order of January 4, 1963. The terms of the order dated January 4, 1963, and the contents of the pronouncement made on April 1, 1963 including the directions given thereby, it was argued, could leave no room for doubt that the pronouncement was made by the Judge as an arbitrator and it was either an award or a pronouncement by a Judge in the nature of an award.

9. I should at once point out, however, that this is not an appeal either against the order of January 4, 1963, or against the pronouncement dated April 1, 1963. In this appeal we are in no way concerned with the said two orders, except in so far as they provide grounds, if any, for a writ petition under Article 226 of the Constitution. Those two orders stand, as they must stand, as orders made by a Judge of this Court in suits and proceedings pending before him. Those orders have been made by a learned Judge who was vested with the jurisdiction to deal with the matters and the said orders bind the parties and will continue to bind them untilset aside, reversed or modified in appropriate proceedings, if any, taken by the parties. It is not for this Court dealing with this appeal, against the order discharging the rule nisi obtained by the appellant, to say anything with regard to the said two orders, except in so far as it is necessary to do so in dealing with the contentions raised by the appellant in this appeal.

10. Turning now to the main contention of the appellant in this appeal, namely, that the pronouncement of Mallick, J., dated April 1, 1963, is an award made by him as the sole arbitrator and not a judgment in the said Suit No. 1045 of 1957, I should at once point out that in order to be an award the pronouncement must be preceded by a valid reference to arbitration. Such a reference in a suit can only be made if all the parties agree, that any matter in difference between them in the suit shall be referred to arbitration. Therefore in order to be an award there must be a reference of the difference by agreement of parties. It follows that in the absence of any agreement between the parties there can be no valid reference to arbitration. The question therefore is, was there any such agreement between the parties to the suit It is true that the order made on January 4, 1963, records such an agreement among the parties. But the question before us is, what is the case that the appellant has made out in her writ petition? The case she made out in the writ petition was that she had no knowledge of any purported agreement to refer the said dispute to the arbitration of Mallick, J., and that she never gave her consent either expressly or impliedly to any reference to arbitration. I set out below paragraph 16 of the appellant's petition:

''16. Your petitioner states that she had no knowledge of any purported agreement to refer, the said disputes in the said suits to the sole arbitration of His Lordship the Hon'ble Mr. Justice P.C. Mallick. There never was any consent by or on behalf of your petitioner either expressly or impliedly to any purported reference of the said disputes to arbitration or Extra Cur-sum Curiae as aforesaid.'

11. The appellant's positive case therefore was that she had no knowledge of the reference to arbitration nor did she give her consent to such a reference either expressly or impliedly. That being her case, is it open to her to contend that the pronouncement made by Mallick, J., on April 1, 1963, should be treated as an award? Can she be allowed to contend before its that even though she was completely ignorant of the reference to arbitration and even though she never gave her consent to the reference, yet the pronouncement should be treated as an award in order to give her the opportunity and the facility to lake steps for having the award set aside because she is aggrieved by the terms thereof? It appears to me however, that there is no foundation or basis for the appellant's contention that the pronouncement made by Mallick, J., on April 1, 1963, is an award or a pronouncement in the nature of an award. It cannot be overlooked that whether the order made on April 1, 1963, is treated, as an award or as apronouncement in the nature of an award or as a pronouncement made Extra Cursum Curiae, in either case, it can only, be made by consent of parties. The appellant has come to Court with a clear and unequivocal averment in her petition that no such consent was ever given and she had no knowledge at all of any reference to arbitration. If there was no such consent, there could neither be A valid reference to arbitration nor could the Judge proceed to make the pronouncement Extra Cursum Curiae. Content of parties is the very foundation and the basis of a valid reference to arbitration or of an order made by a Judge Extra Cursum Curiae. In this case there is an emphatic denial of any such consent having ever been given.

12. Besides denial of any knowledge of the agreement to refer the dispute to the arbitration of Mallick, J., and the denial of consent by the appellant to any reference, the appellant has in her petition challenged the validity of both the reference and the award. In paragraph 18 of tie petition she has stated that there was no application in writing before Mallick, J., by all the parties to the said Suit No. 1045 of 1957 end the Testamentary Suit No. 12 of 1962, for any reference to arbitration as required by Section 21 of (he Arbitration Act, 1940. In the next paragraph, namely, paragraph 19 she goes further and states that the purported reference to arbitration and all proceedings based thereupon are illegal, inoperative, null and void as being in complete contravention of the mandatory provisions of the said Act. In paragraph 21 of her petition she states that Mallick, J., purported to make his award in the said pretended reference and the said purported award was purported to have been made and/or passed in the form of a judgment in suit No. 1045 of 1957. Again in paragraphs 23 and 24 of the petition she has described the award as a purported award and the reference as a pretended reference. Further in paragraph 26 or the petition she has stated: 'the said purported award in the said pretended reference is in any event not enforceable in terms of the said Act or otherwise.' In paragraph 28 of the petition she has again referred to the award as a pretended and purported award. Various grounds have been set out under paragraph 32 of the petition and in the very first ground it is stated that as there was no application in writing by all the parties to the said suit as required by Section 21 of the Arbitration Act, the purported reference to arbitration and all proceedings thereunder including the pretended award are null and void. In the second and third grounds the award has been treated as a pretended award.

13. It is clear therefore that the appellant's case as made out in her petition is that there was no valid reference to arbitration, that no consent was given by her either expressly or impliedly, that the pronouncement made by Mallick, J., was not an award and could not be treated as such. If was on these allegations that she came to Court with her writ petition for relief under Article 226 of the Constitution. Can she be now heard to say that there was a valid reference to arbitration and that the award is a valid award and should be filed as such? Ithink not. Mr. Banerjee faced with this difficulty, contended that notwithstanding the statements in the petition, we should proceed on the basis that the appellant had given her consent to the reference to arbitration and that the pronouncement made by Mallick, J., was an award. He argued that the statements in the petition to which I have referred, were not relied upon in the trial court, where the matter was heard on the basis that there was a valid reference to arbitration. Mr. Banerjee submitted that we should follow the same course and the positive case made by the appellant in the petition notwithstanding, we should proceed on the basis that the appellant had given her consent to the reference to arbitration and that she knew that the learned Judge was going to act as an arbitrator. This course of action however does not commend itself to us. The appellant cannot be and should not be allowed to approbate and reprobate in the manners suggested by Mr. Banerjee. If we accept Mr. Banerjee's contention, namely, that she agreed to refer the disputes in the suit to the arbitration of Mallick, J., the statement made in her petition that she never agreed to a reference to arbitration, at once becomes entirely false and on that basis alone, if on no other, this Court should decline to issue the rule prayed for under Article 226 of the Constitution. Such conduct on the part of a petitioner under Article 226 of the Constitution cannot be encouraged and relief under the writ jurisdiction of this Court must be denied and withheld.

14. There is one other matter to which reference should be made at this stage before I proceed to deal with the several cases relied upon by the learned counsel for the appellant. As noticed above the appellant has repeatedly asserted in her petition that she had not given her consent to the reference of the dispute to the arbitration of the learned Judge and that she had no knowledge of any such agreement among the parties to refer such dispute to arbitration. These allegations in the petition are denied by the respondents Balai Chandra Paul and Kanai Chandra Paul in paragraph 11 of their affidavit-in-opposition affirmed on. August 4, 1964. Dealing with this allegation in the affidavit-in-opposition, the appellant, in paragraph 10, of her affidavit-in-reply affirmed on August 8, 1964, has again emphatically denied that there was any consent given by her or on her behalf expressly or impliedly to any purported reference of the disputes to the arbitration of Mallick, J. The relevant portion of paragraph 10 of the said affidavit-in-reply is set out below:

'With reference to the allegations in paragraph 11 of the said affidavit I reiterate the statements made in paragraph 16 of my petition and deny all allegations contrary thereto and/or inconsistent therewith. I emphatically and with all force at my command deny that there was any consent by me or on my behalf either expressly or impliedly to any purported reference of the suit referring the disputes to the arbitration or to jurisdiction 'Extra Cursum Curiae' of His Lordship the Hon'ble Mr. Justice Mallick. I say that I never consented to the same nor did I authorise anybody on my behalfto give any consent to refer any disputes to arbitration or otherwise ............'

The denial of the allegations made against her could not be more emphatic. As I have said earlier, whether treated as an award or as a pronouncement made Extra Cursum Curiae, consent or agreement of the parties would be the foundation of any such pronouncement or award. There can be no doubt that there is a serious dispute between the parties on the question whether consent was given by the appellant to the course adopted by the learned Judge or whether she agreed to refer the disputes in the suit to arbitration. Such a dispute can be resolved, if at all, by taking evidence and by no other means. The dispute on facts goes to the very root of the matter, namely, whether the appellant gave her consent to the reference to arbitration and it is only after a finding on the facts that such consent was given, that the pronouncement can be treated as an award. This court in dealing with a writ petition cannot go into such disputed questions of fact. In order to uphold Mr. Banerjee's contention that the pronouncement is an award, this Court will have to accept Mr. Banerjee's belated submission before us, that the appellant should be treated as having given her consent to refer the dispute to arbitration. But this contention is entirely contrary to the case made by his client in the petition and also in the affidavit-in-reply as discussed above. In a writ petition, the Court exercising its jurisdiction under Article 226 of the Constitution should not go into the disputed questions of fact, but must relegate the parties to a suit.

15. Mr. Banerjee however contended that the remedy by way of appeal against the judgment and order of Mallick, J., dated April 1, 1963 is barred by limitation and therefore we should give him relief in his petition under Article 226 of the Constitution and in support of this contention he relied upon a decision of the Supreme Court in Union of India v. T.R. Varma, : (1958)IILLJ259SC . In that case it was held that where there are serious disputed questions of fact which could not be decided without taking evidence, the petitioner should be relegated to a suit, but as such a suit in that case would have been barred by limitation and as the High Court had gone into the matter on the merits, the Supreme Court disposed of the appeal on a consideration of the merits. This decision however, does not assist Mr. Banerjee. In the first place the merits which we have considered, namely, that the petitioner never agreed to refer the dispute to arbitration, had not been considered by the trial court at all. In the second place, if merit is to be considered then the statements made by the appellant in her writ petition and also in the affidavit-in-reply, cannot but lead to one conclusion, namely, mat she did not give her consent to refer the dispute to the arbitration of the learned Judge and on that ground alone the rule should be discharged. In the third place a larger and broader question is involved, namely, should this Court grant relief in a writ petition merely because the petitioner has misconceived the nature and scope of the relief to which she is entitled and the procedureshe should have followed? The decision of the Supreme Court does not support Mr. Banerjee's contention that merely because the other remedy by way of a suit is barred by limitation, the Court should grant relief in a writ petition, even though the statements in the petition appear to be entirely false having regard to the case sought to be made out in course of arguments.

16. To turn now to the cases relied upon by Mr. Banerjee. Reliance was placed on a decision of the Madras High Court reported in Belli Gowder v. Joghi Gowder, : AIR1951Mad683 . This was an appeal arising out of a suit to enforce an award given on oral reference or submission to arbitration. Before the suit was filed a Panchayat was held and an award was given. It was held that under the Arbitration Act an award could he made on a written agreement to refer the dispute to arbitration, and there being no such written agreement an award on oral submission could not be filed. This decision does not support the appellant's contention as it was held that there could be no valid award on oral submission.

17. Mr. Banerjee next relied upon another decision of the Madras High Court reported in Nidamarthi v. Thammana Ramayya ILR 26 Mad 76. In this case the parties to a suit had by agreement between them filed a petition requesting the Munsif to give his decision. The Munsif made an order and it was held that he had acted as an arbitrator and no appeal lay from his decision. In this case the parties had clearly agreed to refer the matter to the decision of the Munsif and therefore it has no application to the appeal now before us, as it is emphatically denied by the appellant that she agreed to refer the matter to the arbitration of the learned Judge. For the same reason the decision of this Court relied upon by Mr. Banerjee and reported in Sita Nath v. Baikuntha Nath, ILR 38 Cal 421 is of no assistance to him, inasmuch as in that case also the parties had agreed to leave certain questions in dispute between them to the determination of the Court alter local inspection. The agreement between the parties was the foundation of the proceedings and therefore this decision again is of no assistance to the appellant.

18. Mr. Banerjee next referred to another decision of this Court reported in Subhadra Koer v. Dhajadhari Gossain, 15 Cal LI 142, in which it was held that if parties treated a Judge as their arbitrator and submitted to his decision, even though he had no jurisdiction to deal with the matter in controversy, his decision is binding on them as if it were the award of ail arbitrator. In this case again the parties had agreed to refer the disputes to the decision of the Judge and therefore for the reasons mentioned above this decision also does not help the appellant.

19. Mr. Banerjee next relied upon a decision of the Bombay High Court reported in K.P. Dalai v. R.S. Jamadar, AIR 1945 Bom 478. In this case it was held that even though theJudge purports to act as an arbitrator, he gave is decision not as an arbitrator under the Arbitration Act, but because the parties agreed that whatever the Judge decided would be treatedas final. In this case also the decision of the Judge was preceded by an agreement between the parties, which is denied in the appeal now before us, and therefore, this decision does not help the appellant.

20. Mr. Banerjee next relied upon another decision of the Madras High Court reported in Chengalraya Chetty v. Raghava Ramanuja, AIR 1919 Mad 150. In this case again the parties had agreed to abide by the decision of the Court and for the same reasons this decision also does not support the appellant's contentions in this appeal.

21. The next case relied upon by Mr. Banerjee is also a decision of the Madras High Court reported in Chinna Venkatasami Naicken v. Venkatasami Naicken, AIR 1920 Mad 800 in which again the parties had given their consent to abide by the decision of a Court as an arbitrator, and it was held that it was not a reference under Schedule II of the Civil Procedure Code. For the same reasons, namely, that the agreement to refer the matter to the decision or arbitration of the Judge was strenuously denied by the appellant, this decision does not support her contentions.

22. Mr. Banerjee next relied upon a decision of this Court reported in Anandi Lal Poddar v. Keshavdeo, AIR 1949 Cal 549 for the proposition that where an award was filed and such an award could not be the subject of execution proceedings, there was no need to wait until an application for execution was made, but steps could be taken at the outset to prevent an attempt to enforce the award. It was further held that a court of record had inherent power to order removal of documents from its file in proper cases. This was an application arising out of an arbitration agreement between the partners of a firm. There was an agreement in writing among the partners whereby they agreed to refer the disputes regarding adjustment of partnership accounts to arbitration. This decision is of no assistance to Mr. Banerjee, firstly be. cause this was a case where the parties had agreed to refer their disputes to the decision of a Judge & secondly there was no dispute regarding the agreement to refer the dispute to arbitration. The facts therefore are entirely different from the facts of the appeal now before us, and the observation of Gentle, J., relied upon by Mr. Banerjee is of no assistance to him.

23. Mr. Banerjee next relied upon a decision of the Judicial Committee reported in Commr. of Income-tax Bombay v. Bombay Trust, Corporation, Ltd. and a decision of the Supreme Court reported in State of Bombay v. Pandurang Vinayak, : 1953CriLJ1049 for the proposition that when a person is 'deemed to be' something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were, Mr. Banerjee argued that although the Judge could not be treated as an arbitrator he was deemed to be an arbitrator in the facts of the case. I do not see how these decisions are of any assistance to Mr. Banerjee as his client's positive case was that she never agreed to refer the dispute to the arbitration of the learned Judge and in fact had no knowledge of the reference to arbitration.

24. Mr. Banerjee next referred to two decisions of the Allahabad High Court reported in Mohammed Ishaq v. Balmakund Lal : AIR1929All116 and Baiinath v. Dhani Ram : AIR1929All577 . In both these cases parties had agreed to accept the decision of the Judge to be given in a certain manner. The decisions were preceded by an agreement between the parties to accept the Judge's decision and for that reason these decisions also do not support Mr. Banerjee's contentions.

25. Mr. Banerjee next referred to a decision of the Madras High Court reported in B. Guddappa Rai v. Ramanna Banta, : AIR1957Mad95 in which advocates appearing for both parties submitted a joint memorandum to the Court, affixing their signatures thereto, and it was held that the memorandum must be deemed to have been signed by the parties themselves and also that where parties agreed to abide by the decision of the Court, their intention was to obey or to comply with it, without questioning its correctness or validity. This was a case where there was a clear agreement between the parties to accept the Judge's decision and this again is a decision which does not in any way assist the appellant's contentions before us.

26. Mr. Banerjee relied upon several decisions on the question that where the parties agreed to abide by the decision of a Judge before whom a suit is pending, the parties are bound by the decisions and no appeal lies from such a decision. These decisions are of no assistance to Mr. Banerjee as in this appeal the appellant's case is that she did not give her consent to the dispute being referred to the arbitration of the learned Judge and she was not aware of any such reference. I should however mention the decisions to which reference was made by Mr. Banerjee although I do not propose to deal with them at length. These decisions are reported in Jagdish Prasad v. Paras Ram : AIR1941All360 ; Ledgard v. Bull, ILR 9 All 191 (PC); Sayad Zain v. Kulabhai, ILR 23 Bom 752; Samba y. Mt. Paiki, AIR 1925 Nag 463; Suryanarayana v. Ramachandra Rao, : AIR1963AP8 ; Bengal Silk Mills Co. Ltd. v. Aisha Ariff, : AIR1947Cal106 and AIR 1945 Bom 478.

27. Mr. Banerjee referred to two decisions of this Court reported in Union of India v. K.P. Mandal, : AIR1961Cal118 and Mitra Mukherjee and Co. v. Ajit Kumar, AIR 1963 Cal 9. In support of his contentions that although a decree has been drawn up on the order dated April 1, 1963, if the judgment on which this decree has been drawn up is bad on the ground that it is not a judgment but an award, the decree cannot stand by itself. Since in our view the appellant's contention that the pronouncement made by the learned Judge on April 1, 1963, should be treated as an award cannot be accepted, it is not necessary for us to express our views on this question.

28. Mr. Banerjee next referred to a passage in Russel on Arbitration, 17th Ed. at page 33, for the proposition that a parol submission notbased upon a written agreement to refer is valid, but in such cases there is no arbitration agreement within the Act. These observations, however, do not help Mr. Banerjee at all because a parol submission, even though valid necessarily requires an agreement between the parties which in this case has been denied by the appellant. Having regard to the appellant's contentions discussed above there is no scope for Mr. Banerjee's contentions that the parties agreed to make any submission at all.

29. Mr. Banerjee next referred to a passage in Halsbury, 3rd Ed. Vol. II page 8 Article 15 where it has been stated that an agreement that the decision of a Judge sitting in Court should be unappealable is not an arbitration agreement, but the decision when given is a judgment, not an award, and the Judge is not placed in the position of an arbitrator. This proposition is entirely against the contentions of Mr. Banerjee that the pronouncement of Mallick,J., is to be treated as an award and not as a judgment.

30. Reliance was next placed by Mr. Banerjee on a decision of the Judicial Committee in H.P. Pisani v. Attorney-General for Gibraltar, (1874) LR 5 PC 516. In this case a bill of complaint was by consent of parties amended by addition of the words

'that the rights, if any of the several defendants may be ascertained and declared by decree of this Honourable Court, and that they may be ordered to pay each to the others and other of them their and his costs of this suit, and that this Honourable Court will give such further directions in the premises as shall be necessary.'

It appeared that the parties never contemplated that they intended not to keep the cause in curia or that the Judge is to hear it otherwise than a judge or that this cause should not be heard subject to all the incidents of a cause regularly heard in Court. It was held that the object of the amendment was to give the Courtthe power to declare the rights of the defendants which was a departure from the ordinary procedure of the Court and this could not have been done without consent. It was further held that the amendment was made by agreement between the parties who proceeded on the footing that the Judge should hear the cause and decide the rights of the parties. Two of the defendants in this case were infants and it was contended that consent could not be given on their behalf, but it was held that when one party consented to an order being made, knowing that two of the other parties were infants he could not be heard to object that consent given by him did not bind him. This decision again does not assist Mr. Banerjee, because admittedly there was an agreement between the parties to the amendment of the bill of complaint in a certain manner and the only question was whether the Judge dealt with the matter in Curia or Extra Cursum Curiae.

31. Mr. Banerjee next referred to the decision in Wyndham v. Jackson, (1937) 3 All ER 677. In that case both parties had requested the master to give a decision on a matter which was not covered by the Judge's order for an account. The master gave the decision and issueda certificate that a certain sum was due from the defendant to the plaintiff. An attempt was made to have the certificate discharged, but this was refused on the ground that the master had no power to consider matters not within the scope of the original order for accounts. A further attempt was made to enforce the master's certificate by asking for payment of the sum awarded. This also having failed, a suit was brought claiming payment and it was held that as both parties had requested the master to give a decision on a matter not covered by the order for an account, the master's certificate was in the nature of an award by an arbitrator binding upon the parties. This matter went up in appeal and the decision of the Court of Appeal is reported in Wyndham v. Jackson, (1938) 2 All ER 109. It was held that the intention of the parties was that the master should deal with the dispute according to the process of the Court under which his determination would not be final, but subject to a further order by the Judge and therefore the master's decision could not be treated as an award and the suit must fail. Apart from the fact that the Court of appeal held that the master's decision could not be treated as an award on the ground that his decision was not final, it cannot be overlooked that there was clear agreement between the parties inviting the master to give his decision on certain matters. There was no dispute with regard to this agreement between the parties, whereas in the appeal now before us the appellant denies having ever given her consent to refer the dispute to the arbitration of the Judge. These decisions therefore are of no assistance and have no application to the facts of this case.

32. Mr. Banerjee next referred to the decision in Bickett v. Morris, (1886) LR 1 HL (Sc. App.) 47 in which it was held that where with the acquiescence of both parties, a Judge deviates from the Cursus Curiae, he thenceforth ceases to act judicially and becomes an arbitrator, subject to no appeal. This again is a case in which the parties had agreed that the Judge should act outside the procedure prescribed by law. The agreement between the parties therefore is the foundation of such a procedure and in the appeal now before us there being a complete want of any such agreement, the principle involved in Bickett's case, (1866) LR 1 HL (Sc. App) 47 has no application.

33. From the decisions discussed above it is clear that in order to enable a Judge to act Extra Cursum Curiae or to act as an arbitrator there must be an agreement between the parties to enable the Judge to deviate from the procedure prescribed by law. No Judge can acting on his own and without an agreement among the parties to a suit or any other proceeding, proceed to deal with a case pending before him in any manner other than that prescribed by law. The appellant before us, while contending that she never agreed to refer the dispute in the pending action to the arbitration of Mallick, J., contends that the pronouncement made by the Judge should be treated as an award. Such a proposition is entirely untenable. There is no warrant in law for a proposition that a pronouncement made by a Judge in a pending action should be treated as an award, even though one of the parties contends that she never agreed to refer the matter to the arbitration of the Judge. On the appellant's case as made out in the petition, the order cannot be treated even as a pronouncement made by the learned Judge Extra Cursum Curiae.

34. I should now refer to a few other decisions relied upon by the learned counsel for the appellant. He referred to two decisions of the Supreme Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, : [1961]41ITR191(SC) and Satya Narain Singh v. District Engineer, P. W. D. Ballia, : AIR1962SC1161 in support of the proposition that the Court can in an appropriate case mould or modify the relief, to be granted to a petitioner for the ends of justice, even though the particular relief has not been asked for, and that the Court can make appropriate orders or issue directions for the purpose of giving complete relief to a petitioner. These decisions, however, do not assist the appellant before us, because before the Court considers the question of modifying or moulding the relief to be granted to a petitioner, the Court must be satisfied that a case has been made out in a writ petition for relief under Article 226 of the Constitution. It is only then that the question of modifying or moulding the relief would arise. But if no grounds exist for relief, the question of moulding or modifying the relief to be granted or directions to be issued does not arise. In this appeal the case made out by the appellant in the writ petition disentitles her to the relief asked for by her and for that reason the question of moulding or modifying the relief to be granted or directions to be issued does not arise.

35. Reliance was also placed on another decision of the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, : [1955]1SCR1104 in support of the proposition that the High Court has jurisdiction to issue appropriate writs to any person or authority within its territorial jurisdiction. This decision does not assist the appellant as the Supreme Court was dealing with the plenary powers of the High Court to issue writs on persons or authorities within its territorial jurisdiction. There is no question involved in this appeal now before us, about the territorial jurisdiction of the High Court to issue appropriate writs on the respondents, who undoubtedly are persons against whom appropriate writs can be issued if there was occasion for the issue of such writs and grounds were made out for the same.

36. Reliance was also placed on the decision of the Supreme Court referred to earlier in this judgment in : (1958)IILLJ259SC (supra) for the proposition that where two parties in a proceeding before the Court contradicted each other on a question as to what happened before a Court or Tribunal, the statement of the presiding officer should be taken to be correct. Relying upon this decision, learned counsel for the appellant contended that since Mallick, J., had recorded in his order dated January 4, 1963, that the parties agreed to refer the outstanding disputes to his sole arbitration, that statement in the order should be taken to be the correct version of what happened in Court, although the appellant's contention was that she never agreed or gave her consent to the reference to arbitration. The question before us in this appeal it not what happened in Court, but whether the appellant, on the case made out by her in the petition, is entitled to any relief. As I have already discussed this question at length earlier in this judgment, it is not necessary for me to go into this question again. The appellant wants this Court to grant her relief even though according to the submissions made on her behalf the statements made by her in the petition are entirely untrue and incorrect. This, in my view, cannot be done.

37. Learned counsel for the appellant next referred to a decision of this Court reported in Mohammad Manjural Haque v. Bissesswar Banerji : AIR1943Cal361 to repel a contention raised by the learned counsel for the respondents Nos. 1 and 2, that Mallick, J., is a necessary party to the writ petition and since he has not been impleaded, no relief can be granted to the appellant in her writ petition. As in our view, there is no substance in this contention of the learned counsel for the respondents Nos. 1 and 2, it is not necessary to deal with the said decision of this Court.

38. Mr. Gupta appearing for the respondents Nos. 1 and 2 submitted that the Registrar in filing the award was performing only a ministerial act, and that it was the Registrar's duty to perfect the records and it was not for him to question the propriety of the order made by a Judge of this Court. He further contended that filing of the order by the Registrar did not in any way affect the character of the pronouncement made by the learned Judge and that in filing the order and drawing up the decree the Registrar was not acting contrary to any provisions in law. On the other hand it was the Registrar's duty to file the order, on requisition by the parties to have the decree drawn up. It seems to us that this contention of Mr. Gupta is well founded. On a requisition by a party, the Registrar is bound to tile the order and also to draw up the decree. An order has been made by a Judge of this Court before whom a suit is pending, and the Rules provide for filing of such an order and for drawing up of a decree on the same. If the Registrar acted contrary to the Rules or in violation thereof, different considerations would apply. But in this case there has been neither a violation of the Rules by the Registrar, nor an omission on his part to perform the duties which the Rules of this Court have imposed upon him. We cannot therefore hold that a writ of mandamus would lie against the Registrar, in the facts of this case.

39. Mr. D.N. Das appearing for the respondents Nos. 3 and 4 referred to the various Sections of the Arbitration Act 1940, and contended that the Act had clearly made a distinction between the Court and an arbitrator, and there was no scope for contending that the Judge trying a cause could himself become an arbitrator. He further contended that the law of arbitration in this country had been consolidated and codified in the Arbitration Act, 1940, and it was with reference to that Act thatthe question was to be considered, namely, whether a Judge could become an arbitrator in a cause pending before him. In my opinion, this contention of Mr. Das is well founded. The Act has made a clear distinction between the Court before which a cause is pending and an arbitrator to whom the disputes in a pending cause can be referred, and whatever else the pronouncement of a Judge may be, even when such pronouncement is made by consent of parties, it cannot be treated as an award and filed as such.

40. It was next contended by Mr. Das that a decree has been drawn up, completed and filed and there remains nothing to be done so far as the decree that was drawn up on the judgment passed on April 1, 1963, was concerned. He argued that the appellant failed to take appropriate steps to stop or stay the drawing up of the decree and for that reason it was no longer open to her to challenge the decree on the ground that it has not been properly drawn up and filed or that such a decree should not have been drawn up at all. There is a good deal of force in this contention of Mr. Das. If the appellant's contention is that the decree cannot be drawn up and should not be drawn up, it was for her to take steps to stop the drawing up of the decree. Such a decree having been drawn up and filed, it is not for this Court in exercising its jurisdiction under Article 226 of the Constitution, to interfere with the decree which has already been filed and forms part of the record of the suit.

41. For the reasons mentioned above, this appeal fails and is accordingly dismissed with costs to the appearing respondents Nos. 1 to 4. Certified for two counsel. The respondent No. 5 will pay and bear his own costs.

42. Let the operation of this order remain in abeyance for a month from to-day, as prayed for, but this order for stay will not operate as a stay of further proceedings in the suit.

Let this order be drawn up and completed forthwith.

Bose, C.J.

43. I agree.


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